09/19/14 – Scott Horton – The Scott Horton Show

Hey y'all, Scott Horton here.
I want to tell you about this great new book, Live in La Vida Baroca, American Culture in an Age of Imperial Orthodoxies, by Thomas Harrington.
While he comes from the left, Harrington has little time for much of what is passed off under that label today.
Like us libertarians, he puts peace and freedom first.
The book's got great essays on American fascism, empire, the Israeli occupation, the left in Obama, liberalism in the state, and some interesting lessons from the history of imperial Spain.
Live in La Vida Baroca by Thomas Harrington.
Check it out at scotthorton.org slash books or scotthorton.org slash amazon.
Alright you guys, welcome back to the show.
I'm Scott Horton and so's my guest.
He's the other Scott Horton, no relation.
But he's a heroic anti-torture international human rights attorney, former chair of the New York Bar Association's committees on human rights and on international law, he's a professor of law at Columbia University, he's a contributing editor at Harper's Magazine, and he's the author of the new book Lords of Secrecy.
Oh wait, I hope that wasn't a secret, was it Scott?
Welcome to the show, how are you doing?
No, I'm thankful for the plug, I'm doing fine.
Okay great, I'm so sorry I haven't read this thing yet.
My pile of books, if it fell on me I'd be a dead man.
And those are just the ones I haven't gotten to yet.
The ones I've read, well that's an entirely different story.
But yeah, Lords of Secrecy, can't wait to read this and I already hear back that others really like it too, so that's good, can't wait to read it.
It's Lords of Secrecy, the National Security Elite and America's Stealth Warfare.
Hey that's a good subtitle.
And is this thing published yet, or available yet, or what's the deal?
It's going into print next month.
Next month, okay great.
And then so we can expect to see it at Amazon.com then or later?
Yeah, in fact the page is already up there at Amazon.com, you can check on it and you can put in the pre-order.
There you go.
Hey do that everybody, support other Scots' work.
It's guaranteed to be good work, come on.
Alright, so Lords of Secrecy indeed.
Hey let's talk about the new war.
Along with secrecy goes the impunity of the modern American empire.
And as we speak, John Kerry himself is sitting in for Samantha Power and is chairing a meeting of the United Nations Security Council on the issue of the war against ISIS.
Now my understanding is they're not seeking a UN resolution and consensus with Russia and China on this war against ISIS, a UN resolution to start a war.
They're claiming they already have the authority regardless of the UN on this.
Is that correct?
Or what do you think?
Yeah, I mean, you know, I would say this is typical to some extent, that is, when you're not sure you're going to get UN support, you don't say you have to have it.
And that's the situation they're in now, where it's not entirely clear.
I'd say as a matter of international law, quite apart from US law or constitutional law, the sort of military intervention that they're carrying out, they can probably do it consistent with international law in Iraq because they've got the Iraqi government inviting them in and saying, go at it.
But their position in Syria is a lot less clear.
I'd say a pretty strong case that what they're doing without UN approval is not lawful.
Well, and, you know, it's interesting because there's a report today, it is a single sourced report, but Robert Perry, I think, does a really good job.
It's worth mentioning.
He says that America has a secret deal now with, through the Russians, with Assad to go ahead and allow us to bomb.
Maybe they'll come to more of an official understanding on that later.
But, you know, as though it's really, I guess, legally speaking, it is up to him to give America permission to bomb eastern Syria.
Correct.
That's right.
I mean, you know, there is a lawful government in Syria.
That's Assad's for the moment.
They're recognized by the UN, they're accredited.
And that means that they, if they say it's OK, then as a matter of international law, it is OK for the US to come in and bomb ISIS.
All right.
Now, so maybe we'll get back to the UN and the international politics of the war and all that in a minute.
But I want to kind of rewind to the beginning of this discussion that we kind of skipped over just because of the immediate news here about Kerry at the UN right now about the war powers, because there's been a lot of controversy about this.
And even one of Bush's lawyers who helped legalize not the very worst abuses, but was still part and parcel of a lot of some of the bad stuff from the Bush era, Jack Goldsmith, who wrote a thing for Time magazine, just shocked.
He sounds exactly like Marjorie Cohen at Truthout about the abrogation of war power here by the president United States.
And so I guess I want to start with actually the Constitution, Article One, Section eight, and whether that is, as Henry Hyde said back in 03 to Ron Paul, just an anachronism and not part of the Constitution that we have to follow anymore.
Is that really right?
That just, you know, presidents can start war.
But they usually says, well, the War Powers Act updates Article One, Section eight, Clause 11, and says that the president can start a war for 60 days if he wants.
Is that right?
What the hell?
Well, I think the fact that we're 230 years into this Constitution and we can have such arguments tells you right off the bat that the Constitution is not a model of clarity on this issue.
It certainly isn't.
And I would say what is, and I'm, by the way, I'm with Jack Goldsmith on this.
You know, oddly enough, I disagree with him on almost everything else.
But I would say we are in or approaching a constitutional crisis in the United States about the presidential use of war powers.
And that is, while it's never been terribly clear in the law, it has been reasonably clear that the president has the power or authority to take defensive action.
If the country is attacked, he can defend the country.
He can launch a riposte to things of that sort.
But if he's launching a sustained offensive action on the territory of another state, his authority is circumscribed by a requirement that he has the approval of Congress, okay?
So the first point is, does that mean he has to have a declaration of war from Congress?
And the answer on that point is definitely not.
So, you know, the clause in the Constitution that gives Congress the right to declare war, well, Congress does have that right.
But that doesn't dispose of this whole war-making ability.
And if we look at things historically, you know, Congress has exercised its right of co-determination on the issue many, many different ways, by passing resolutions, by appropriating funds, and by declaring war, for instance.
But Congress has to be involved.
And I think what we're seeing in the last several years is a pretty consistent circumvention of Congress, so that Congress is really playing no role.
I would go back to 2011 in Libya, and look at what happened there.
I mean, we never had congressional action authorizing that sustained military operation in Libya.
We had 2011 in Syria, remember the whole Red Line incident, where there was a talk of military intervention.
That was all resolved when the Russians put in their initiative to just come in and take out the chemical weapons.
And now we're back at it again this year with another issue with Syria and Iraq.
And now we have Congress voting some sort of authority.
But we've also got the president saying, well, I don't really need that.
I mean, I can do it whether they act or not.
What they're doing maybe is just sort of a hood ornament for this card, not something essential to it.
So I'd say the basic question is the co-determination rights of Congress about the war.
And is Congress taking its rights and its authority seriously?
I'm not so sure it is.
Yeah, well, there's an election coming up, and they're afraid.
And now one minor correction there.
I'm sure you meant to say 2013, the chemical weapons Red Line thing when you said 2011 there.
Exactly.
Well, 2011 was Libya.
2013 was Syria.
Right.
Well, and they started the covert action in Syria then, but they had a finding.
So that's perfectly illegal anyway.
But well, now, so back on the Libya thing for a second, because they started the war on a U.N. resolution that authorized a no-fly zone, but without any congressional authorization at all.
So that's the dynamic of a Democratic president and Republicans who are divided, some of them more hawkish, others of them anti and following more of a Rand Paul line back then.
And so what they did, though, was they had the vote in the House.
They had a couple of different votes, and they failed to pass one to deauthorize the war and to try to make him make Obama end it.
And then I forget whether they actually had the vote on the one to authorize it, or if they pulled it at the last minute because they knew they didn't have the votes to pass the one to authorize.
So in essence, either way, they failed to pass a thing to authorize.
It's not just that they didn't pass it.
There was one and it did not get passed.
And then they went on vacation.
And then they came back and said, let's all talk about the debt ceiling and not the Libya war anymore.
And that was the end of that discussion in the Congress.
And so that's kind of a weird thing.
I don't know if there's any precedent for that in history where they had the opportunity to go either way and they chose neither.
And now the bumper music's playing.
I'm sorry, but maybe we'll pick that up on the other side and some of the legalities of what Obama claimed about what counts as hostilities or not, that kind of thing for the purposes of the War Powers Act.
It's the great, brilliant genius, the other Scott Horton, author of the new book Lords of Secrecy.
We'll be right back.
Hey, I'll Scott Horton here.
It's always safe to say that one should keep at least some of your savings in precious metals as a hedge against inflation.
And if this economy ever does heat back up and the banks start expanding credit, rising prices could make metals a very profitable bet.
Since 1977, Roberts and Roberts Brokerage Inc. has been helping people buy and sell gold, silver, platinum, and palladium, and they do it well.
They're fast, reliable, and trusted for more than 35 years.
And they take Bitcoin.
Call Roberts and Roberts at 1-800-874-9760 or stop by rrbi.co.
Okay, finally, we're back.
We're Scott Horton.
Me, the host, and him, the interviewee, he's the other Scott Horton from Columbia University and Harper's Magazine.
And we're talking about the War Powers.
Obama taking us back to war against the Islamic State.
And yeah, point of clarification, just for sure, yeah, they are definitely not seeking a U.N. resolution.
Kerry's just up there talking, and eventually they're going to have something about some refugees or some minor issues, but they're not going through the U.N. on this.
Which I guess is fine, because I never really understood, Scott, the legality of the U.N. Charter anyway, because they submitted it to bare majorities to both Houses of Congress, the U.N. Participation Act.
So that's not really a treaty, which requires a supermajority in the U.S. Senate, according to the Constitution.
But then again, of course, kind of like the point here, there is no Constitution.
They do whatever they want, they call it whatever they want, and like in our current situation, the only solution to the Obama problem right now is impeachment.
That's the only way to make a president stop doing what he's doing, and of course the Congress doesn't want to do that any more than they want to authorize what he's doing.
So they just go on and keep proving that really there is no law.
Well, there's a pernicious idea that gets thrown around there all the time that, you know, the government doesn't have to go to Congress and get approval through the American political process because the U.N. has approved it, the Security Council has passed a resolution as if that's a substitute for the Constitution and the requirements of the Constitution, and they make all sorts of technical legal arguments to support that.
But that's molderdash, it's nonsense.
And now Harry Truman did that in Korea, and I remember when I was a boy, that was how H.W. Bush started to treat the first Iraq war, right, was Congress was an afterthought on this.
You guys can authorize what we're doing anyway if you want to, sure, climb on board.
But people got incensed about that and said, no, come on.
That's right.
I mean, this is an argument that gets trotted out by everybody, by people on the left, by people on the right.
It's trotted out to support the president and the president's power grabs all the time.
But legally, it just doesn't make sense.
You know, the bottom line is that the president may have authority.
The president's got to get his authority on both tracks.
He's got to have his international law authority.
He has to have his constitutional and domestic law authority in the United States.
One is not a replacement for the other.
And now, well, I don't want to get too far off track, but so what was H.W.'s legal excuse for Panama?
Because he didn't have any kind of resolution from anybody but his own National Security Council on that.
Yeah, well, that was response to a request from local authorities for assistance.
It was a police action.
Oh, I see.
And that's an argument that the U.S. is used for military interventions in our hemisphere, you know, and the Dominican Republic and Grenada and places like that, we say it's a police action.
But I think we should we should get back to the current problem, because I think we're seeing some arguments develop now, which are really very, very dangerous.
And they're flying right underneath the radar screen and not getting as much attention as they should.
And the key one is that because of powerful new technologies the United States has, all of this democratic claptrap of congressional review and approval has become irrelevant.
Because that we only have the argument goes, we only have to go to Congress and get congressional approval if they're boots on the ground.
You know, because they're American soldiers, sailors, airmen who could possibly be at risk.
So there's sort of an acceptance.
Well, OK, Congress has some say about that.
But hey, when it's our cruise missiles and our drones and our fighters up ahead, then there's no real risk of anybody being shot down or hurt because the people we're dealing with just don't have that sort of technology.
Hey, then Congress has nothing to say about it.
That's been trotted out.
In fact, that was even included in one of the Justice Department legal memoranda, the one from April 1st, 2011, that said the intervention in Libya without congressional approval was fine.
Yeah.
They just changed the word to kinetic activities or something.
And all of a sudden that doesn't mean shooting explosives at people, which is a hostile act.
Right.
Yeah.
I mean, it's nonsense.
It's nonsense.
I mean, they're saying, well, we have all this this fancy new technology.
And, you know, that's not what the authors of the Constitution were thinking about.
Well, the authors of the Constitution were thinking about, you know, muskets and mortars and you know, and and men of war ships with hundreds of cannons.
Yeah, that's true.
They weren't thinking about the technologies we have today.
But in terms of the principle, the principle that is embedded in the Constitution is that no sustained warfare overseas that does not have the approval of Congress.
That's clearly in our Constitution.
And part of the reason for it is Congress is supposed to be involved so there can be a good, thorough public discussion of these things, not just that congressional leaders throw their support behind it, but that the public is brought in.
The public has an opportunity to discuss these matters.
And in the end of the day, if the country is going to war, it should be a united public.
I mean, not that everybody has to have the same view, but basically the public should be on board.
Congress should be on board.
The executive should be on board.
It shouldn't be a stealth war that's being handled by the president and his national security elites.
Right.
And after all, if we're talking about a truly defensive war, you're going to have plenty of consensus from the people in the Congress to go ahead and do it anyway.
The only times we got to debate this is when we're talking about starting aggressive wars against people who've never attacked us.
How much debate should we have and what level of legality and approval should we have for starting a war, which is, you know, they said at the Nuremberg trials that that's the Supreme War crime of all.
That's the umbrella under which the rest of them take place.
And as we've seen.
I think that's right.
And if you look at American history.
Wars that result from America being attacked or the involved in attack on America were very broadly supported by the American people and by the Congress.
And the nation was able to unite behind them.
But offensive wars that never had a real strong basis.
Those are the ones that caused tremendous internal friction.
The war with Mexico, for instance.
The Spanish-American War also, which was launched with, you know, some misrepresented events.
Remember the main and the Vietnam War falls into that category as well.
So, you know, I think America's had all sorts of different experiences with wars overseas, but generally it's done much better when the country was united behind the idea of the war.
Right.
And I think we can see what you mean about the thoroughness of the debate and all that with the way and the way the responsibility is weighted with the way they did it in 2003.
I mean, compared to Obama, at least Bush went to Congress at all to get one of these so-called authorizations for him to decide later, which became, you know, the weasel word excuse for the Hillary Clintons of the world that it was Bush's decision, not theirs, even though they told him that he could decide.
But the debate, like I mentioned, Henry Hyde, the head of the House Judiciary Committee, or I guess it was the Foreign Affairs Committee at the time, mocked Ron Paul for insisting on a declaration of war.
And Ron Paul actually introduced one and voted against it in the committee.
But he said, you know, I dare you guys to take responsibility, like in the law that you swore your oath to.
If you want to declare this war, you declare it.
It's on you.
And what happened was at the time they just had these, you know, Joe Biden style rubber stamp hearings about how great the war is going to be.
Nothing like what would have happened if they had been bound truly by the law the way Ron Paul insisted that they should have been and had to take the responsibility themselves to start the war.
They might have asked what's going to happen and who is this Muqtada al-Sadr guy anyway and these kinds of things before they launched the war.
I think this is the key point to make here is that with Bush one and two, you had a lot of people in their senior national security team who believed fervently, you know, Cheney and Rumsfeld right at the top of the group, that the president just had the right to go do this.
He didn't have to go to Congress.
He didn't have to get any approval.
He didn't have to present it in a speech to the American people or anything of that sort.
But both Bush senior and Bush junior, notwithstanding that advice from their senior advisers, went to Congress and got the congressional approval.
And that occurred after a full debate and discussion or let's say at least some extended debate and discussion.
And if we fast forward to what's been going on in Washington now the last four, five, six years, we just don't see that happening anymore.
I mean now, you know, Obama and his team who criticized those people who said the president can do this unilaterally.
I mean Obama gave an interview to Charlie Savage at the Boston Globe in which he said, No, no, no, the president has to have congressional approval before launching a military attack on Iran.
That was the question he got.
But now you look at Obama as president and he's embracing and acting on ideas that are much like those of Cheney and Rumsfeld and not doing the right thing a la the two Bushes and going to Congress anyway.
So, you know, he did in 2012 and again this year say, Well, Congress should have a discussion.
But he said that as if it would be helpful to have it, not that he needed it.
Right.
Well, and interestingly, he went to Congress in 2013 over Syria when he wanted them to save him from a stupid red line remark and get him out of the woods on having to go to war against Syria.
He said, You guys voted down for me.
They ended up not even having the vote at all.
Exactly right.
And thank goodness Putin intervened and gave him an out.
But anyway, I'm sorry we're out of time.
But thank you so much for coming back on the show, Scott.
I sure appreciate it.
Hey, great to be with you.
That's the other Scott Horton.
Everybody see you next week.
Hey, I'm Scott Horton here to tell you about this great new book by Michael Swanson, The War State.
In The War State, Swanson examines how Presidents Truman, Eisenhower and Kennedy both expanded and fought to limit the rise of the new national security state after World War Two.
This nation is ever to live up to its creed of liberty and prosperity for everyone.
We are going to have to abolish the empire.
Get The War State by Michael Swanson.
It's available at your local bookstore or at Amazon.com in Kindle or in paperback.
Just click the book in the right margin at scotthorton.org or thewarstate.com.
Hey, all Scott here.
If you're like me, you need coffee, lots of it.
You probably prefer taste good, too.
Well, let me tell you about Darren's Coffee, company at darrenscoffee.com.
Darren Marion is a natural entrepreneur who decided to leave his corporate job and strike out on his own, making great coffee.
And Darren's Coffee is now delivering right to your door.
Darren gets his beans direct from farmers around the world, all specialty, premium grade with no filler.
Hey, the man just wants everyone to have a chance to taste this great coffee.
Darren's Coffee.
Order now at darrenscoffee.com.
Use promo code Scott and save $2.
Darren'scoffee.com.
Hey, all.
Scott here for Whole Food Multicomplete at wholefoodcomplete.com.
Whole Food Multicomplete is an entire supplement program in one bottle, containing 100% RDA of vitamins and minerals, plus live probiotics, digestive enzymes, antioxidant herbs, energy nutrients, and more.
It's made in America using real foods and live probiotics.
No chemical synthetics.
It's soy-free, gluten-free, and independently tested and verified.
They're so sure you'll love it, they're taking 20% off your first order with coupon code Scott Horton.
Satisfaction is guaranteed at wholefoodcomplete.com.
Oh, John Kerry's Mideast Peace Talks have gone nowhere.
Hey, all.
Scott Horton here for the Council for the National Interest at councilforthenationalinterest.org.
U.S. military and financial support for Israel's permanent occupations of the West Bank and Gaza Strip is immoral, and it threatens national security by helping generate terrorist attacks against our country.
And face it, it's bad for Israel, too.
Without our unlimited support, they would have much more incentive to reach a lasting peace with their neighbors.
It's past time for us to make our government stop making matters worse.
Help support CNI at councilforthenationalinterest.org.